H-1B visas to become more merit-based

The USA’s Department of Homeland Security (DHS) has proposed a new merit-based rule for a more effective and efficient H-1B visa program

The suggested new rules would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period.

USCIS would also reverse the order by which it selects H-1B petitions under the H-1B cap and the advanced degree exemption. This would likely increase the number of beneficiaries with a master’s or higher degree from a US institution of higher education to be selected for an H-1B cap number, therefore introducing a more meritorious selection of beneficiaries.

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require highly specialised knowledge and a bachelors or higher degree or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions.

Under the proposed new rules, once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that H-1B visas will be awarded to the most-skilled and highest-paid beneficiaries. Importantly, the proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a US institution of higher education.

USCIS also expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS.

On 18th April 2017, President Trump issued the Buy American and Hire American Executive Order, which instructed the DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of US workers in the administration of our immigration system.” The Executive Order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”